McCorker v. Lashbrook
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 1/26/2018:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LEE McCORKER, (#N73107),
Petitioner,
v.
JACQUELINE LASHBROOK, Warden,
Menard Correctional Center,
Respondent.
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Case No. 17 C 5613
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Before the Court is pro se Petitioner Lee McCorker’s petition for a writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies
Petitioner’s habeas petition and declines to certify any issues for appeal under 28 U.S.C. §
2253(c)(2).1 [R. 1.]
BACKGROUND
When considering § 2254 habeas petitions, federal courts must presume as correct the
factual findings made by the last state court to decide the case on the merits unless the habeas
petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1);
Hicks v. Hepp, 871 F.3d 513, 525 (7th Cir. 2017). Where Petitioner has not provided clear and
convincing evidence to rebut this presumption, the following factual background is based on the
Illinois Appellate Court’s findings in People v. McCorker, No. 1-11-1155, 2013 WL 3148996
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Petitioner’s reply brief was due on or before January 17, 2018. To date, Petitioner has failed to
file his reply brief, although he filed a motion to amend his habeas petition that the Court
addresses in this ruling.
(1st Dist. June 18, 2013) (unpublished); People v. McCorker, No. 1-14-3624, 2016 IL App (1st)
1423624-U (1st Dist. July 11, 2016) (unpublished).
I.
Factual Background
Evidence at Petitioner’s jury trial in the Circuit Court of Cook County revealed that at
about 10:30 p.m. on May 11, 2008, Petitioner and his girlfriend Beth Pickett were arguing in an
alley when Petitioner punched Pickett in the stomach and face. Pickett then fell to the ground
and appeared unconscious. Thereafter, Petitioner braced himself against a fence with both hands
and forcibly kicked Pickett in the face eight or more times with the heel of his shoe. Petitioner
walked away, but when Pickett made a gurgling noise, he returned to her and repeatedly stomped
on her head and face with his foot. Again, Petitioner walked away leaving Pickett lying on the
ground in the alley. Shortly before midnight, Petitioner went to his father and told him “I think I
killed Beth.” The following morning, Petitioner went to the police station with his father and
turned himself in for Pickett’s murder.
After his jury trial and conviction, the Circuit Court of Cook County Judge held a
sentencing hearing. In aggravation, the State submitted three victim impact statements from
Pickett’s family and certified copies of Petitioner’s prior convictions for armed robbery and
aggravated criminal sexual assault. The State argued that Petitioner’s actions were mean,
vicious, and violent and that he should be sentenced to life in prison. In mitigation, defense
counsel presented a portion of the video from Petitioner’s police interrogation showing him
crying and argued that Petitioner was truly remorseful. Defense counsel further highlighted
several notations in Petitioner’s presentence investigation report, including that he grew up with
“an abusive mother and a drug-dealing father,” and that he was removed from his mother’s care
and raised by his father due to her abuse. In addition, defense counsel stated that Petitioner was
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receiving psychiatric treatment and taking two antidepressant medications. Defense counsel also
argued that Petitioner started using drugs when he was 17-years-old and tried to stop, but began
using crack cocaine again when he met Pickett. After the sentencing hearing, the Circuit Court
concluded that Petitioner had led a criminal life involving considerable violence and sentenced
him to a term of 50 years in prison.
II.
Procedural Background
On direct appeal to the Illinois Appellate Court, Petitioner, by counsel, argued that his
sentence was excessive based on the sentencing court’s improper weighing of mitigating and
aggravating factors in violation of the Illinois Constitution and Illinois case law. Petitioner
moved for leave to file a pro se supplemental brief arguing that: (1) he was denied his
constitutional right to a fair trial when the trial court refused to give jury instructions on selfdefense; (2) his trial counsel was constitutionally ineffective for failing to preserve the issue of
the self-defense jury instructions in his post-trial motions; (3) his trial counsel was ineffective for
failing to present the affirmative defense of self-defense; and (4) he was denied his constitutional
right to a fair trial due to the prosecution’s inflammatory and erroneous statements made in
opening and closing arguments.
The Illinois Appellate Court denied Petitioner leave to file his pro se supplemental brief
because he was represented by counsel on appeal. Further, the Illinois Appellate Court held that
Petitioner had forfeited review of his claim that his sentence was excessive because he did not
file a motion to reconsider his sentence and did not establish plain error. Petitioner then filed a
pro se petition for rehearing that the Illinois Appellate Court denied on August 15, 2013.
Thereafter, Petitioner filed a pro se petition for leave to appeal (“PLA”) to the Supreme Court of
Illinois bringing the claims he asserted in his motion for leave to supplement his counseled
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appellate brief. The Supreme Court of Illinois denied Petitioner’s direct appeal PLA on January
29, 2014.
On August 22, 2014, Petitioner filed a pro se post-conviction petition pursuant to the
Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. In his post-conviction petition,
Petitioner argued that his appellate counsel was constitutionally ineffective for failing to argue
that trial counsel was ineffective because he did not: (1) preserve the claim that the trial court
erred in denying his request for self-defense jury instructions; (2) object to the prosecution’s use
of inflammatory and egregious statements made during opening and closing arguments; and (3)
fully develop a self-defense affirmative defense.
The Circuit Court of Cook County dismissed the pro se post-conviction petition as
frivolous and patently without merit. See 725 ILCS 5/122-2.1(2). After Petitioner appealed the
dismissal of his post-conviction petition, on February 23, 2016, his appointed appellate counsel
filed a motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct.
1990, 95 L.Ed.2d 539 (1987). Petitioner filed a pro se response to counsel’s Finley motion in
which he included a new claim, namely, that his trial counsel rendered ineffective assistance of
counsel for not pursuing an insanity defense. The Illinois Appellate Court permitted counsel to
withdraw and affirmed the denial of Petitioner’s post-conviction petition. Petitioner then filed a
post-conviction PLA with the Supreme Court of Illinois arguing that his trial counsel was
constitutionally ineffective for failing to assert an insanity defense. On November 23, 2016, the
Supreme Court of Illinois denied Petitioner’s post-conviction PLA.
III.
Habeas Petition
On July 31, 2017, Petitioner filed the present pro se petition for a writ of habeas corpus.
Construing Petitioner’s pro se allegations liberally, see Echols v. Craig, 855 F.3d 807, 812 (7th
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Cir. 2017), he asserts that: (1) his sentence is excessive based on the sentencing court’s improper
weighing of mitigating and aggravating factors; and (2) his trial counsel was constitutionally
ineffective for failing to raise an insanity defense. In his supplemental motion, Petitioner asserts
that he was denied his constitutional right to a fair trial when the trial court refused to give jury
instructions on self-defense.
LEGAL STANDARDS
I.
Habeas Relief
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court
cannot grant habeas relief unless the state court’s decision was contrary to, or an unreasonable
application of federal law clearly established by the Supreme Court. See Williams v. Taylor, 529
U.S. 362, 402-03, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000); Pinno v. Wachtendorf, 845 F.3d
328, 331 (7th Cir. 2017). The Supreme Court has explained that a state court’s decision is
“contrary to” clearly established Supreme Court law “if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law” or “if the state court confronts facts
that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to ours.” Williams, 529 U.S. at 405. Under the “unreasonable application”
prong, a habeas petitioner must demonstrate that although the state court identified the correct
legal rule, it unreasonably applied the controlling law to the facts of the case. Id. at 407.
“Needless to say, the AEDPA standard of review is a difficult standard, and it was meant to be.”
Baer v. Neal, ___ F.3d ___, 2018 WL 358029, at *4 (7th Cir. Jan. 11, 2018).
II.
Exhaustion and Procedural Default
“A federal habeas corpus petitioner is required to exhaust his available state remedies
before seeking federal relief.” Lisle v. Pierce, 832 F.3d 778, 785 (7th Cir. 2016) (citing 28
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U.S.C. § 2254(b)(1)(A)). “Inherent in the habeas petitioner’s obligation to exhaust his state court
remedies before seeking relief in habeas corpus, is the duty to fairly present his federal claims to
the state courts.” King v. Pfister, 834 F.3d 808, 815 (7th Cir. 2016) (citation omitted). More
specifically, a habeas petitioner must fully and fairly present his federal claims through one full
round of state court review before he files his federal habeas petition. See O’Sullivan v.
Boerckel, 526 U.S. 838, 845, 848, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999). If a habeas petitioner
fails to fully and fairly present his federal claims through one full round of state court review, he
has procedurally defaulted his claims. Tabb v. Christianson, 855 F.3d 757, 765 (7th Cir. 2017).
Also, “a federal court may not review federal claims that were procedurally defaulted in state
court – that is, claims that the state court denied based on an adequate and independent state
procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). Procedural default precludes
federal courts from reviewing the merits of a petitioner’s habeas claims. Thomas v. Williams,
822 F.3d 378, 384 (7th Cir. 2016).
A habeas petitioner may overcome procedural default by demonstrating cause for the
default and actual prejudice or by showing that the federal court’s failure to consider the claim
would result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536, 126
S. Ct. 2064, 165 L.Ed.2d 1 (2006). The Supreme Court defines cause sufficient to excuse
procedural default as “some objective factor external to the defense” which prevents a petitioner
from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492, 106
S. Ct. 2639, 91 L.Ed.2d 397 (1986); Johnson v. Foster, 786 F.3d 501, 505 (7th Cir. 2015).
Prejudice means actual prejudice infecting the “entire trial with error of constitutional
dimensions.” Murray, 477 U.S. at 494 (citation omitted). A fundamental miscarriage of justice
occurs when a habeas petitioner establishes that “a constitutional violation has probably resulted
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in the conviction of one who is actually innocent.” Id. at 496; see also Hicks v. Hepp, 871 F.3d
513, 531 (7th Cir. 2017).
ANALYSIS
I.
Procedural Default
Respondent argues that Petitioner’s excessive sentence claim is procedurally barred based
on the Illinois Appellate Court’s determination that Petitioner had “forfeited” this claim for
failing to file a motion to reconsider his sentence with the trial court. To clarify, “federal courts
will not review questions of federal law presented in a habeas petition when the state court’s
decision rests upon a state-law ground that is independent of the federal question and adequate to
support the judgment[.]” Richardson v. Griffin, 866 F.3d 836, 842 (7th Cir. 2017) (citation
omitted). “To be ‘adequate,’ a state-law ground must be ‘a firmly established and regularly
followed state practice at the time it is applied.’” Donelson v. Pfister, 811 F.3d 911, 917 (7th
Cir. 2016) (citation omitted); see also Crockett v. Butler, 807 F.3d 160, 167 (7th Cir. 2015)
(federal courts “ask whether the rule invoked was ‘firmly established and regularly followed.’”)
(citation omitted). A state law ground is independent “when the court actually relied on the
procedural bar as an independent basis for its disposition of the case.” Lee v. Foster, 750 F.3d
687, 693 (7th Cir. 2014) (citation omitted). It is well-established under Illinois law that a
defendant forfeits appellate review of his sentencing claim if he fails to include it in a motion to
reconsider the sentence. See People v. Fort, ___ N.E.2d ___, 2017 WL 651954, at *3 (Ill. Feb.
17, 2017) (citing Ill. S.Ct. R. 615(a)). Moreover, the Illinois Appellate Court relied on
Petitioner’s forfeiture in its decision affirming his conviction and sentence. Therefore, Petitioner
has procedurally defaulted his first habeas claim.
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Second, Respondent argues that Petitioner procedurally defaulted his habeas claim that
trial counsel rendered ineffective assistance of counsel for failing to raise an insanity defense
because he did not raise this claim in one complete round of state court review. See Hicks, 871
F.3d at 530 (“petitioner must ‘fairly present’ his constitutional claims through at least one
complete round of the state’s established appellate review process before presenting the claims to
a federal court for habeas review.”). Specifically, although Petitioner made this argument in his
Finley response brief and his post-conviction PLA to the Supreme Court of Illinois, he did not
raise it in his post-conviction petition to the trial court in the first instance. See Smith v. Gaetz,
565 F.3d 346, 352 (7th Cir. 2009) (habeas petitioner is “required to raise the claim at each level
of state court review: in his initial post-conviction petition before the trial court, in his appeal to
the Illinois Appellate Court, and in his Petition for Leave to Appeal (PLA) to the Illinois
Supreme Court”). Therefore, Petitioner’s ineffective assistance claim based on the insanity
defense is procedurally defaulted.
Likewise, Petitioner’s habeas claim that that he was denied his constitutional right to a
fair trial when the trial court did not give self-defense jury instructions is procedurally defaulted
because the Illinois Appellate Court rejected this argument on independent and adequate state
law grounds. In particular, the Illinois Appellate Court did not consider this argument because
Petitioner raised it in his pro se supplemental appellate motion that the Illinois Appellate Court
rejected because Petitioner was represented by counsel. See People v. Williams, 97 Ill. 2d 252,
267 (1983) (Under Illinois law “a defendant has no right to both self-representation and the
assistance of counsel”); see also People v. Serio, 357 Ill.App.3d 806, 815 (2d Dist. 2005) (“An
accused has the right either to have counsel represent him or to represent himself; but a
defendant has no right both to self-representation and the assistance of counsel”). As the
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Seventh Circuit recently explained, “the state appellate court applied its general rule that hybrid
representation is disfavored and declined to accept [petitioner’s] pro se brief because he was
represented by counsel. That was an independent and adequate state ground of decision and
precludes federal habeas review[.]” Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017).
Petitioner has therefore procedurally defaulted this claim.
In order for the Court to reach the merits of these procedurally defaulted claims,
Petitioner must demonstrate cause for the default and actual prejudice or show that the Court’s
failure to consider the claim would result in a fundamental miscarriage of justice. Although
“[m]eritorious claims of ineffective assistance can excuse a procedural default,” the ineffective
assistance of counsel claims “must themselves be preserved.” Richardson v. Lemke, 745 F.3d
258, 272 (7th Cir. 2014). In other words, Petitioner cannot use his claims of ineffective
assistance of counsel to excuse his procedural default because the Illinois Appellate Court
concluded that he had forfeited these claims for failing to raise them on direct appeal. See Bolton
v. Akpore, 730 F.3d 685, 697 (7th Cir. 2013); Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir.
2010). In any event, Petitioner does not argue cause and prejudice nor does he argue that the
fundamental miscarriage of justice exception applies under the circumstances. Accordingly, the
Court does not reach the merits of these habeas claims.
II.
Non-Cognizable Claim
Moreover, Petitioner’s first habeas claim that his sentence was excessive in violation of
the Illinois Constitution and Illinois case law also fails because it is not cognizable on habeas
review. As the Seventh Circuit instructs, “[f]ederal habeas corpus relief is not available to
correct perceived errors of state law.” Crockett v. Butler, 807 F.3d 160, 168 (7th Cir. 2015); see
also Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 116 L.Ed.2d 385 (1991) (“habeas
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corpus relief does not lie for errors of state law”). Simply put, Petitioner’s argument focuses on
the state court’s violation of state – not federal – law. Wilson v. Corcoran, 562 U.S. 1, 5, 131 S.
Ct. 13, 178 L.Ed.2d 276 (2010) (“it is only noncompliance with federal law that renders a State’s
criminal judgment susceptible to collateral attack in the federal courts”) (emphasis in original).
As such, Petitioner’s excessive sentence claim is not cognizable on collateral review, and thus
the Court cannot determine the merits of this claim. See King, 834 F.3d at 814 (“[i]t is wellestablished that on habeas review, a federal court cannot disagree with a state court’s resolution
of an issue of state law”).
III.
Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254
Proceedings, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Accordingly, the Court must determine whether to grant
Petitioner a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) in the present ruling.
Simply put, a habeas petitioner does not have the absolute right to appeal a district court’s denial
of his habeas petition, rather, he must first request a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 335, 123 S. Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); Flores-Ramirez v.
Foster, 811 F.3d 861, 865 (7th Cir. 2016) (per curiam). A habeas petitioner is entitled to a
certificate of appealability only if he can make a substantial showing of the denial of a
constitutional right. See Miller-El, 537 U.S. at 336; 28 U.S.C. § 2253(c)(2). In cases where a
district court denies a habeas claim on procedural grounds, a certificate of appealability should
issue only if the petitioner shows that (1) jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right, and (2) jurists of reason would
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find it debatable whether the district court was correct in its procedural ruling. Slack v.
McDaniel, 529 U.S. 473, 485, 120 S. Ct. 1595, 146 L.Ed.2d 542 (2000).
Here, Petitioner has not established that reasonable jurists would debate that his claim
based on Illinois sentencing law is not cognizable on habeas review. In addition, a reasonable
jurist would not conclude the Court erred in ruling that Petitioner had procedurally defaulted
habeas claims based on his excessive sentence, the alleged ineffective assistance of counsel, and
the self-defense jury instructions. See id. at 484 (“Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case,” the claim is not debatable). As
such, the Court declines to certify any issues for appeal. See 28 U.S.C. § 2253(c)(2).
CONCLUSION
For these reasons, the Court denies Petitioner’s petition for a writ of habeas corpus and
declines to certify any issues for appeal. See 28 U.S.C. §§ 2253(c)(2), 2254(d)(1).
Dated: January 26, 2018
ENTERED
__________________________
AMY J. ST. EVE
United States District Judge
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